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Judge recuses himself from Cheatham case; 82 motions back to square one

New jury trial date will have to be set

Shawnee County District Court judge Mark Braun recused himself Friday from presiding over the capital murder trial of Phillip Cheatham.

Phillip Cheatham filed a complaint against Shawnee County District Judge Mark Braun, saying he had "total disregard" for his duty.

Shawnee County District Judge Mark Braun on Friday morning recused himself from the capital murder trial of Phillip D. Cheatham Jr. after Cheatham filed a judicial complaint against the judge.

That means any of the 82 motions filed in the case that already have been ruled on will have to be argued again, and the Jan. 5 retrial will have to be rescheduled. The defense and prosecution were waiting on rulings for 37 motions that already have been argued.

Cheatham originally was sentenced to death for the 2003 shooting deaths of two Topeka women, shootings that police say were drug-related. The Kansas Supreme Court overturned the sentence in 2013, citing ineffective assistance of counsel.

Cheatham filed a judicial complaint against Braun. In what he labeled “Affidavit of Truth in Support of Judicial Complaint Against Presiding Judge,” Cheatham states Braun had “total disregard” for “his oath, duty, the Constitution and affiant’s rights throughout the course of the three years it took to be ordered a new trial after demonstrating the prejudice that led to the convictions.”

“Two or more crucial, key and integral parts of the theory of the defense of the accused are no longer available due to the fact that they (two prosecution witnesses, one of whom was key) both died during the unjustified delay wholly caused by the state’s disregard for due process,” Cheatham wrote.

Cheatham’s complaint with Braun stems from the judge in May promising a fair trial before he had ruled on motions. Cheatham contends defense motions, which include a challenge to the state’s death penalty, require the trial to be dismissed.

“That, to me, shows an utter disregard for his oath, for the constitution, for my rights and for his duty,” Cheatham said in a June interview at Shawnee County Jail.

Cheatham also said: “I’m used to dealing with a state that isn’t keeping the protection of my rights high on their agenda. Obviously.”

A new trial was ordered for Cheatham in 2013 when the Kansas Supreme Court overturned his capital murder conviction and death penalty sentence for the Dec. 13, 2003, killings of Annette Roberson and Gloria Jones, who were shot to death in a southeast Topeka home.

Cheatham also faces charges for the attempted first-degree murder of Annetta D. Thomas, who was shot 19 times in the attack but survived.

Cheatham is charged with capital murder in the killings of Roberson and Jones.

He also faces two alternative premeditated first-degree murder counts in their killings, as well as attempted first-degree murder and aggravated battery against Thomas. There also is a criminal possession of a firearm count.

After his conviction in his first trial, Cheatham was sentenced on Oct. 28, 2005, to the “Hard 50” prison term for the killing of Jones, and the death penalty for the slaying of Roberson.

Those convictions and sentences were overturned when the Kansas Supreme Court ruled Cheatham received ineffective assistance of counsel.

Friday was supposed to be a lengthy motions hearing. Both sides were to argue positions on:

■ Whether the deceased lead detective’s prior testimony could be admitted at the new trial.

■ Cheatham’s motion for dismissal on the grounds that capital punishment in Kansas is unconstitutional because it allegedly is racially discriminatory.

■ Cheatham’s motion not to allow for a “Hard 50” sentence.

■ The state’s request to allow evidence of other wrongdoings by the defendant.

■ And the defendant’s motion to exclude rap song lyrics he composed about the deaths.

Braun told chief deputy district attorney Jacqie Spradling and defense attorneys John Val Wachte and Paul Oller that he was going to orally issue rulings on motions, but there would also be some written ones. However, Braun then asked about the complaint Cheatham filed against him.

Cheatham, through his attorneys, said “in the interest of justice,” he wanted Braun to recuse himself.

“With where we are on this case, I’m obviously concerned,” Braun said.

He also said, because it is a death penalty case, he wants there to be an “orderly and fair resolution.”

Chief Judge Evelyn Wilson will have to appoint a new judge to the case.

“We stand ready to try this case in front of which ever judge it is assigned to,” Spradling said.

In court documents, Cheatham states “the judicial misconduct this court has repeatedly delayed issuing ruling on motions that were filed over a year ago which are of constitutional magnitude.”

Cheatham also wrote Braun and retired Judge Matthew Dowd, who sentenced Cheatham to death, denied him “his right to a fair trial to present witness in his favor, speedy trial, effective assistance of counsel.”

“The trial was used as a means to deprive the accused of his liberty by the state of Kansas and the actions of Judge Braun represent a continuation of this conspiracy by the state of Kansas to constructively deprive the accused of due process in total contravention of the authority delegated to them by ‘The People’ of Kansas,” Cheatham wrote.